il d a 9 “ oka k on | w -W' ls ! a V- o’ a "d s ond n n i ion fo Wi of io a i fo h ou of cial als f a yland s 3 as os 39 59 W W W - Jus in B own B W W 3 as Bal i o ui l Bal i o a yland l: 4 - 44-5444 ax: 4 -934-3 own@cj wnlaw co ay 9 ah in son ( o hac vic nding) Ja s W lay on (ad i d o hac vic ) Ka h yn li (ad i d o hac vic ) W avid axw ll (ad i d o hac vic ) G V 555 hi nh W Washing on 4 l: - 37-549 axz — 37-59 ca s son@hoganlov lls co ouns lfo s ond n dnan yd
82
Embed
COURT 0F APPEALS OF MARYLANDThejurythatconvicted Syed,however,neverheardacritical piece ofevidence: the testimonyofAsiaMcClain,afellow Woodlawnstudent. McClainsenttwoletters to Syedwhile
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
IN THECOURT 0F APPEALS OF MARYLAND
September Term, 2018
NO. 126I. §
fi Filed aSTATE OF MARYLAND,
MAY 29 2M“
. . okarkPetmoner, |
wM-W'ls
rm! PeaV- mo’tMa "d
ADNAN SYED,
Respondent.
On Petition for Writ of Certiorari
from the Court of Special Appeals 0f Maryland
September Terms, 2013 , 2016
Case Nos. 1396, 2519
ANSWER IN OPPOSITIONTO PETITION FOR WRIT OF CERTIORARIWITH CONDITIONAL CROSS-PETITION
C. Justin BrownBROWN LAW231 East Baltimore Street, Suitel 102
A. The State’s Theory .................................................................................. 3
B. The Missing Alibi Evidence 4
C. The Circuit Court Grants a New Trial. 4
D. The Court 0f Special Appeals Affirms. .................................................. 5
REASONS FOR DENYING THE WRIT ........................................................................... 6
I. THE COURT OF SPECIAL APPEALS CORRECTLYAPPLIED ESTABLISHED PRINCIPLES TO THESPECIFIC FACTS BEFORE IT. .................................................................. 7
ll. THE STATE SIMPLY SEEKS TO RE—LITIGATE THEPARTICULAR FACTS OF THIS CASE. .................................................. 11
where proposed alibi witnesses “were convicted 0f having participated in the same
murders for which [defendant] was being tried”); State v. Thomas, 946 P.2d 140, 144
(Mont. 1997) (failure to interview non-alibi witnesses reasonable where none “could have
provided exculpatory information”). Because the reasonableness inquiry under Strickland
is case-specific, it is neither surprising nor cause for discretionary review that the Court
of Special Appeals and the State’s proffered cases reached different conclusions based on
markedly different facts.
In short, the Court of Special Appeals did not create some novel, burdensome, and
broadly-applicable test. It followed established Sixth Amendment principles in finding
that, under the facts of this case, trial counsel performed deficiently in failing to contact
and investigate McClain as an alibi witness. Review by this Court is unnecessary.
II. THE STATE SIMPLY SEEKS TO RE-LITIGATE THE PARTICULARFACTS OF THIS CASE.
The State’s Question Presented itself reveals the fact-bound nature of the Petition.
It asks: “[w]hether the Court of Special Appeals erred in holding that defense counsel
pursuing an alibi strategy without speaking t0 one specific potential witness 0f uncertain
11
significance violates the Sixth Amendment‘s guarantee 0f effective assistance 0f
counsel.” Pet. 3. That question features two resolved factual issues that the State seeks t0
re-litigate. It describes the significance of McClain’s testimony as “uncertain[.]” 1d. And
it asserts that counsel presented an alibi strategy at trial independent of McClain. Neither
0f those is true.
The significance of McClain’s testimony is not “uncertain” in the least. Both the
Circuit Court and the Court of Special Appeals concluded that, had she testified, McClain
“would have directly contradicted the State’s theory of when Syed had the opportunity
and did murder Hae.” Op. 102; see also Cir. Ct. Op. 25.
As for counsel’s trial strategy: first, the question in this case was whether
counsel’s investigation before trial was ineffective. As the Court of Special Appeals
explained, that question is assessed separately from whether counsel’s strategy at trial
was otherwise reasonable. Op. 93 n39. In any event, the State’s assertion is false. As the
Court 0f Special Appeals recognized, “in her opening statement and closing argument,
trial counsel did not raise any alibi defense for Syed[,]” saying “nothing about Syed’s
whereabouts” during the time 0f the murder. Id. at 89 (emphases in the original). There is
no need for a third layer of review 0f the State’s fact-specific contentions.
Similarly, the State makes n0 effort to identify an issue 0f broad import in the
analysis 0f the prejudice prong. Instead, the State admits that its complaint is simply that
the Court of Special Appeals supposedly weighed the evidence incorrectly by “placfingl
undue emphasis on” the timing 0f the murder. Pet. 15. The State is asking for mere error
correction, and n0 error exists; as one would expect in a murder trial, the State
12
emphasized the time of the murder throughout, including in its opening and closing
statements. Op. 96—99; see also id. at 89.
Based 0n the evidence before it, the Court 0f Special Appeals concluded that trial
counsel’s failure prejudiced Syed’s defense. Id. at 102; see also id. at 100—03. There is no
need for discretionary review of this well-founded conclusion. See Skakel v. Comm’r of
Correction, N0. 19251, 2018 WL 2104577, at *26 (Conn. May 4, 2018) (identifying this
case as one of many finding that counsel’s failure t0 “present the testimony 0f a credible,
noncumulative, independent alibi witness” prejudiced the defense).
CONDITIONAL CROSS-PETITION
Should the Court grant the State’s Petition, it should also grant Syed’s Conditional
Cross-Petition to review the Court of Special Appeals’ ruling that Syed waived his
allegation of ineffective assistance based 0n trial counsel’s failure to challenge the
reliability 0f cell-tower location data. The Court of Special Appeals’ finding that the post-
conviction statute did not require knowing and intelligent waiver of Syed’s cell—tower
claim contradicts this Court’s interpretation of that statute in Curtis v. State, 284 Md. 132
(1978).
The Maryland Post—Conviction Procedure Act states that “an allegation of error is
waived when a petitioner could have made but intelligently and knowingly failed to make
the allegation” in a prior proceeding. Md. Code Ann., Crim. Proc. § 7—106(b)(1)(i). In
Curtis, this Court interpreted the scope of this provision, finding that the legislature
intended to require intelligent and knowing waiver of allegations of error premised on
fundamental constitutional rights. 284 Md. at 148, 150 n.7. This Court specifically held
13
that one such allegation 0f error is that of ineffective assistance 0f counsel. Id. at 150—5 1.
“It is settled that a criminal defendant cannot be precluded from having this issue
considered because 0f his mere failure t0 raise the issue previously.” Id. at 150.
Notwithstanding this precedent, the Court 0f Special Appeals held that Syed’s
ineffective—assistance claim relating to cell-tower location data was “based 0n a non-
fundamental right for the purpose of waiver” and therefore was not subject t0 the
statutory knowing and intelligent waiver standard. Op. 50—5 1 . This holding is
inconsistent with Curtis.
The Coun 0f Special Appeals justified its departure from Curtis with a novel
distinction between “the issue 0f a violation of a fundamental right”—which is subject t0
the statutory waiver standard—and “the grounds supporting such a claim”—which are
not. Id. at 45. The Court 0f Special Appeals classified Syed’s cell-tower claim as merely
a “ground” supporting the issue 0f ineffective assistance and thus held that Syed waived
the claim simply because he failed t0 raise it in a prior proceeding. Id. at 45, 50, 53.
This distinction between “issues” and “grounds” was erroneous for three reasons.
First, the distinction has n0 basis in the statute. Section 7-106(b) orients the waiver rule
around “allegations of error,” not issues 0r grounds. And Syed’s initial ineffective—
assistance claims and his cell-tower claim are separate “allegations 0f error” within the
plain meaning 0f that term. The reasonableness 0f trial counsel’s decision not to use
evidence to challenge the State’s cell—tower expert, for instance, is an entirely separate
question from the reasonableness of trial counsel’s failure t0 contact an alibi witness. And
each 0f the allegations, if true, would independently entitle Syed to relief under the post—
14
conviction statute. Compare Cir. Ct. Op. 59 (granting a new trial based on the cell-tower
claim), with Op. 53, 104—105 (granting a new trial based on the alibi claim). Thus, the
two claims are separate “allegations of error.”
Second, the Court of Specials’ distinction is inconsistent with how ineffective-
assistance claims are analyzed in analogous contexts. For example, when applying the
federal habeas exhaustion requirement—a concept similar t0 waiver—courts have held
that ineffective—assistance claims with different factual predicates must be treated
separately. See Wood v. Ryan, 693 F.3d 1104, 1120 (9th Cir. 2012) (“[A] general
allegation of ineffective assistance of counsel is not sufficient to [satisfy the exhaustion
requirement for] separate specific instances of ineffective assistance.”); Pole v. Randolph,
570 F.3d 922, 934—935 (7th Cir. 2009) (ineffective-assistance claim premised 0n one set
of facts does not “exhaust” claim premised 0n another)?
Third, the legislative history 0f the post-conviction statute does not support a
distinction between “issues” and “grounds” as a means 0f limiting post—conviction
proceedings. While the 1995 amendment limiting petitioners t0 one post-conviction
petition indicates a concern with finality, Op. 51—52, the legislature also created a
procedure for re—opening a petition and left unchanged the statutory waiver provision
that, as interpreted in Curtis, requires intelligent and knowing waiver 0f allegations of
2Arrington v. State, 411 Md. 524 (2009) does not hold otherwise. Op. 46—49. That
decision addressed whether a petition re-opened under Section 8-201 based on DNAevidence is a “prior petition” for purposes 0f waiver, not Curtis 0r the “intelligent andknowing” standard.
15
error premised on fundamental rights, trumping the general interest in finality in those
narrow circumstances.
Properly viewed, Syed’s cell-tower claim is a separate “allegation 0f error” from
his other ineffective-assistance claims. Under Curtis and Section 7-106(b), this allegation
of error can only be waived if Syed intelligently and knowingly failed to raise it in a prior
proceeding. He did not. The Court of Special Appeals’ decision t0 the contrary warrants
this Court’s review, in the event the State’s Petition is granted.
CONCLUSION
For the foregoing reasons, the State’s petition should be denied. If the State's
petition is granted, Respondent’s cross—petition should similarly be granted.
péflfully submitted,
?CflaC. Justin Brown Catherine E. Stetson (pro hac vice pending)
BROWN LAW James W. Clayton (admitted pro hac vice)
231 East Baltimore Street, Suitel 102 Kathryn M. Ali (admitted pro hac vice)
Baltimore, Maryland 21202 W. David Maxwell (admitted pro hac vice)
Tel: 410-244-5444 HOGAN LOVELLS US LLPFax: 410-934-3208 555 Thirteenth Street, [email protected] Washington, DC 20004
In McElroy v. State, 329 Md. 136, 147-48 (1993), the Maryland Court of Appeals
identified the kind 0f evidence that must be offered to rebut the presumption that a petitioner
intelligently and knowingly effected a waiver. First, the issue must not have been raised by the
petitioner in a prior proceeding. 1d. Second, the petitioner must never have been advised by
counsel that the petitioner should have raised the issue of ineffective assistance of counsel in the
initial petition for post-conviction relief. Id. Third, the petitioner must never have been advised
that trial counsel may have been ineffective for failing t0 pursue certain actions underlying the
ineffective assistance 0f counsel claim at issue. 1d. Finally, the Court must take into
consideration the petitioner’s education level and mental capacity to intelligently and knowingly
waive the allegation. Id.
Here, the Court finds that Pethioner has met thc burden to rebut the presumption that he
intelligently and knowingly waived his right t0 seek relief based 0n trial counsel’s alleged failure
35
to challenge the reliability Ofthe cell tower evidence. Although Petitioner alleged that trial
counsel may have been ineffective 0n other grounds in his initial petition, he has never alleged
that trial counsel rendered ineffective assistance for her alleged failure t0 challenge the State’s
cell tower expert with the disclaimer. More importantly, Petitioner was never advised that trial
counsel may have been ineffective for her alleged failure t0 challenge the State‘s cell tower
expert at trial with Lhe disclaimer in prior proceedings. ln fact, Petitioner's counsel fm‘ the post—
conviction proceedings did not advise Petitioner about the issue until shortly before August 24,
201 5, when counsel consulted with a cell tower expen about the potential ramifications of the
disclaimer.” See Curtis, 284 Md. at 142-50 (holding that the Maryland General Assembly did
not intend t0 bind the petitioner to his 0r her lawyer’s action 0r inaction under the waiver statute;
instead, the pertinent question is whether the petitioner intelligently and knowingly effected the
waiver). Since Petitioner did not know about the potential implications of‘trial counsel’s failure
t0 challenge the cell tower evidence, he could not have knowingly waived his right to raise the
allegation.
'I‘he record also shows that at Petitioner never completed his high school education. See
Disposition TL, at 11, Jun. 6, 2000. Requiring a layman who lacks a complete high school
education to understand the intricacies ofcellular network design and the legal ramifications 0f
trial counsel’s failures to challenge the evidence would be inconsistent with the spirit 0f the Sixth
Amendment. As Justice Alexander George Sutherland explained:
Even the intelligent and educated layman has small and sometimes no skill in the science
0f law. If charged with crime, he is incapable, generally, ofdetermining for himself
whether the indictment is good or bad. He is unfamiliar with the rules 0f evidence. Left
‘6 Counsel also did not fully advise Petitioner ofthe factual basis ofhis ineffective assistance of counsel allegation
until sometime afier September 29, 2015, when Waranowitz, the Slate’s cell tower expert at trial, informed counsel
that he never saw the disclaimer at issue. See Petitioner‘s Exhibit PCZ—ZO.
36
without the aid of counsel he may bc- put 0n trial without a proper charge, and convicted
upon incompetent evidence, 01* evidence irrelevant 10 the issue 0r otherwise
inadmissible. He lacks both the skill and knowledge adequately to prepare his defense,
even though he have a perfect one. He requires the guiding hand 0f counsel at every step
in the proceedings against him. Without it, though he be not guilty, he faces the danger 0f
conviction because he does not know how to establish his innocence. Ifthat be 1rue of
men 0f intelligence, how much more true is it 0f the ignorant and illiterate, or those of
feeble intellect
Powell v. Alabama, 287 U.S. 45, 69 (1932). In accordance. with the fundamental nature orthe
Sixth Amendment. the Court finds that Petitioner did not intelligently and knowingly waive his
right t0 challenge trial counsel’s alleged failure t0 confront the State’s cell tower expert with the
disclaimer.
Accordingly, the Court shall consider the merits of the allegation that trial counsel
rendered ineffective assistance when she failed to cross-examine the State’s cell tower expert
about the reliability of the cell tower evidence. l7 T0 prevail on an ineffective assistance of
counsel claim, a petitioner must satisfy the two-prong test established in Strickland v.
Washington. 466 U.S. 668, 690-91 (1984). First, a petitioner must show that counsel rendered
deficient performance. 1d. at 690. Second, a petitioner must also establish that counsel’s deficient
performance prejudiced his or her defense. Id. at 69].
Petitioner argues that trial counsel’s performance fell below the standard 0f reasonable
professional judgment when she failed to use the disclaimer to confront the State’s expert about
the reliability 0f the cell tower evidence. When reviewing counsel‘s performance for deficiency§
‘7ln Petitioner’s Supplement t0 Re-Open Post—Conviction Proceedings, Petitioner advanced a general argument that
trial counsel’s failure to “act” on the disclaimer amounted t0 ineffective assistance of counsel. Petitioner argued that
trial counsel should have cross—examined the State's expert about the disclaimer or filed a motion in Iimz‘ne to
exclude Exhibit 3] through a Fae—Reed hearing. In the November 6. 2015 Statement of Reasons and Order 0fthc
Court, the Court limited the scope 0f the issue that would be under consideration: whether trial counsel rendered
ineffective assistance for her alleged failure t0 cross-examine the Slate’s cell tower expert. Although Petitioner
attempted to make additional arguments regarding the cell tower evidence at the February 2016 post-conviction
hearing, the Court will not consider issues that are outside the scope of the issues specified in the Court’s Order.
37
the Court presumes that counsel “rendered adequate assistance and made all significant decisions
in exercise of reasonable professional judgment.” Bowers v. Slate, 320 Md. 41 6, 421 (1996).
Deficient performance may be found, however, ifPetitioner establishes that counsel’s
performance “fell below an objective standard ofreasonableness.” Harris v. Slate, 303 Md. 685,
697 (1985). Most importantly. the Court must refrain from succumbing t0 the temptation of
hindsight; instead, counsel’s performance must be evaluated at the time 0f his 0r her conduct.
Strickland, 466 U.S. at 690.
At trial, the SIate relied upon two incoming calls to corroborate Wilds’s testimony that
Petitioner had buried the victim’s body in Leakin Park at approximately 7:00 p.m. on January 13,
1999. The State specifically identified two incoming calls at 7:09 pm. and 7:1 6 p.m. on Exhibit
31 that connected with cell site “L689B,” which provided cellular network coverage to an area
that encompassed Leakin Park. In addition to Wilds’s testimony and Exhibit 3 l , the State relied
upon radio frequency engineer Waranowitz, who testified as an expert in Wireless cellular phone
network design and functioning in the greater Baltimore area.
Prior to trial, Waranowitz had conducted a test to determine which cell site would
provide the strongest signal when a call is originated at a certain location. Waranowitz conducted
the test by making a call at a location provided by the State and then recording which cell site
provided the strongest signal for the call. The Stale asked Waranowitz to conduct an origination
test at the burial site, which elicited the following testimony at trial:
[STATE]: If I may approach the Clerk at this time, I need State’s Exhibit 9, It’s one of
the big photo arrays. I’m now showing you what’s bccn marked for identification 0r in
evidence as State’s Exhibit 9. I would like you to 100k at the top left photograph and then
the others as well. Can you identify the location?
38
[WARANOWITZ]: This was the location 1' was taken to where .l. was told a body was
buried.
[STATE]: Already designated 0n this map by B. You’ve had a chance to 100k at the map
and see that?
[WARANOWITZ]; Yes.
[STATE]: When you got t0 that site and you can hand the exhibit back t0 the Clerk
at this time, what test did you perform?
[WARANOWI’I‘Z]: l originated a phone call.
[STATE]: And What cell site did you find that that site went through?
[WARANOWITZ]; L689B.
[STATE]; I would like ifyou look at lines 10 and 11 on the State’s Exhibit 34,1181
you‘ve got cell site 689, L689B, add ress 2122 Windsor Park Lane. Is that the same
cell site that a phone call initiated there went through?
[WARANOWITZ]: Yes.=1: 4: 2k
[STATE]: Now, if there were testimony that two people in Leakin Park at the burial
site and that two incoming calls were received on a cell phone, they’re an AT&Tsubscriber cell phone there, cell phone records with two calls that were —— went
through that particular cell site location [L689B], would be — that functioning of the
AT&T network be consistent with the testimony.
[DEFENSE]: Objection.
[COURT]: You may only answer only as it relates to an Erickson piece of equipment.”
[WARANOWITZ]: Yes.
Trial Tn, at 97-100, Feb. 8, 2000 (emphasis added). The testimony revealed that when
Waranowitz conducted the origination test at the burial site, he recorded that the test call
1“ State’s trial Exhibit 34 Is a copy oflixhibit 3 l, Petitioner’s cell phone records, with an additional column of
addresses designated by the State.
'9The Court had initially limited Warmmwitz’s testimony t0 Erickson :quipmcm because Warmlowitz received his
training and conducted the test using an Erickson phone, instead of a Nokia 6160 phone that Petitioner had used on
January 13, I999. However, the trial cuun would later qualify Waranowitz as an expen in Nokia 6160 phones
because he had conducted other tests with that phone model. Waranowitz, testified that the Nokia 6160 would
perform about the same as the Erickson model.
39
connected with cell site “T168913.” At trial, Waranowitz affirmed that his lest results matched the
same “L689B” cell site identified in Exhibit 31 for the 7:09 pm. and 7: 16 pm. incoming calls.
Waranowitz then testified that if Exhibit 31 showed two incoming calls connected with cell site
“L689B,” then the cell phone could have possibly been located in Leakin Park when the phone
received the incoming calls.
According t0 Petitioner, Exhibit 31 is an excerpt of a much larger set of documents, and
the subject page 0f these documents is titled: “SUBSCRIBER ACTIVITY.” Petitioner’s Exhibit
PC2-15. Trial counsel also possessed an AT&T fax coversheet that she obtained during pretrial
disclosure, and the fax cover sheet contained a set of instructions labeled, “How to read
‘Subscriber Activity” Report.” Petitioner’s Exhibit PC2—16. The set 0f instructions also included
a disclaimer which specified that:
Oulgoing calls only are reliable for location status. Any incoming calls Will NOT be
reliable information for location.
1d. (emphasis added) Petitioner contends that a reasonable attorney would have cross—examined
Waranowitz about the disclaimer and undermined the State’s reliance 0n the 7:09 pm. and 7: i6
pm. incoming calls to approximate the general location 0f Petitioner’s cell phone during the time
of the burial.
The Court finds that trial counsel rendered deficient performance when she failed lo
properly cross-examine Waranowitz about the disclaimer. The Maryland Court 0f Appeals has
recognized that the failure t0 conduct an adequate cross—examination may be grounds for finding
deficient performance. See Bowers, 320 Md. at 436-37; see also People V. Lee, 185 Ill.App.3d
420, 438 (1989) (holding that counsel’s cress-examination of the State’s most crucial witness fell
below the standard of reasonable professionaljudgment); People v. Trait, 527 N.Y.S.2d 920, 921
40
(1988) (finding that counsel’s “excessive and pulposeless” crossmexamination deprived the
accused 0f the right t0 effective assistance of counsel).
The United States Court 0f Appeals for the Eighth Circuit’s decision in Driscoll v. Dela,
71 F.3d 701 (8th Cir. 1995), is instmctive. In Driscoll, the defendant was convicted 0f murdering
a correctional officer during a prison disturbance. Id. at 704. At trial, the State presented the
testimony ofa serological expert, who conducted a series ofblood trace examinations 0n a
homemade knife that belonged to the defendant. Id. at 707. According t0 the State’s expert, the
examinations revealed that the blood trace found on the homemade knife matched the blood type
“A" 0f another officer, but the examination could not find the victim’s blood type “O” 0n the
knife. 1d. The State advanced the theory that tho victim’s blood was actually present on the knife,
but the presence of an additional blood type “masked” the victim’s “O” blood. 1d. The laboratmy
report indicated, however, that another test had been conducted showing that n0 blood type "O”
had been masked 011 the knife, which conclusively disproved the State’s argument. 1d. at 707-08.
Although the State had disclosed the report 0f the test results to defense counsel, he failed to
cross—examine the State’s serology expert about the test results that would have undermined the
State’s theory of the case. Id. a1 708.
The United States Court 0f Appeals for the Eighth Circuit evaluated counsel’s
performance in light Ofthe circumstances 0f the case. In particular, the United States Court 0f
Appeals for the Eighth Circuit noted that the defendant was confronted with a possible death
sentence ifconvicted 0f the capital murder charge. 1d. at 709. Given the stakes 0f the case,
whether the blood traces on the defendant's knife matched the blood type 0f the victim
“constituted an issue 0f utmost importance.” Id. A reasonable attorney under these circumstances
41
would have carefully reviewed the blood test reports, and exposed the weakness 0fthe State’s
case on cross-examination if the State advanced a theory that was inconsistent with the test
results. 1d. As such, the United States Coun Oprpeals for the Eighth Circuit held that “defense
counsel’s failures to prepare for the introduction of the serology evidence, t0 subject the state's
theories to the rigors 0f adversarial testing, and t0 prevent the jury from retiring with an
inaccurate impression that the victim's blood might have been present 0n the defendant's knife
fall short of reasonableness under the prevailing professional norms.” Id.
The circumstances in the present case are strikingly similar t0 those found in Driscoll.
Here, the State charged Petitioner with first-degree murder and if convicted, Petitioner faced a
lifetime of confinement. Whether Petitioner’s cell phone records revealed an incriminating link
between Petitioner and the murder was an issue of crucial importance. Under these
circumstances, a reasonable attorney would have carefully reviewed the documents disclosed as
part ofpre-trial discovery: including the set of instructions and disclaimer provided by AT&T on
how to correctly intelpret the cell phone records. If the State advanced a theory that contradicted
the. instructions or disclaimer, a reasonable attorney would have undermined the State’s theory
through adequate cross-examination.
As the Court noted, supra, the State‘s theory relied upon the two incoming calls at 7:09
p.111. and 7:16 p.m. t0 approximate the general location 0f Petitioner’s cell phone during the time
0f the burial. The State advanced its theory through the expert opinion of Waranowitz, who
testified that if Exhibit 3] indicated that the two incoming calls at issue connected with cell site
“L689B,” then it was possible that the cell phone was located in Leakin Park when the phone
received the incoming calls, The State's theory 0f relying 0n incoming calls to determine the
42
general location 0f Petitioner’s cell phone: however, was directly contradicted by the disclaimer,
which specified that “any incoming calls will NOT be considered reliable information for
location.” Petitioner’s Exhibit PC2-16.
Upon reviewing the contents of Exhibit 31 and the disclaimer, a reasonable attorney
would have noticed that the only information pertinent to location in Exhibit 31 was the cell site
column. Therefore, the disclaimer raised the possibility that Exhibit 31 may not reliably have
reflected the corresponding cell site 0f an incoming call. If the cell sites contained in Exhibit 31
were not reliable with respect to incoming calls, then it was not certain whether cell site
“L689B” could be relied upon for location with respect to the two incoming calls at 7:09 p.m.
and 7: l 6 pm. Despite this uncertainty, the Slate asked Waranowitz t0 compare his test results
and draw an inference as t0 the possible location of Petitioner’s cell phone using the cell site
information for the incoming calls at 7:09 pm. and 7:16 pm.
A reasonable attorney would have exposed the misleading nature 0f the State’s theory by
cross—examining Waranowitz. The record reflects, however, that trial counsel failed to cross-
examine Waranowitz about the disclaimer?" Even under the highly deferential standard 0f
Strickland, the failure to cross—examine the State’s expert witness regarding evidence that
contradicted the State’s theory Ofthe case can hardly be considered a strategic decision made
within the range ofrcasonable professional judgment. See Washington v. Murray, 952 F.2d 1472,
1476 (4th Cir. 1991) (noting that counsel‘s performance would have fallen below the standard 0f
3° Trial counsel crOSSwexamined Waranowitz on several topics. Trial counsel asked Wamnowitz whether he ensured
the testing conditions were similar to the circumstances present on January 13, 1999, such as by testing under
similar weather conditions, using the same brand of cell phone, and dialing the same set of numbers. Waranowitz
rsspondcd that hc did not match any conditions when he conducted the origination test at the burial site bccausc 'm
most cases. cell site “L689B” 1's the only cell site with the strongest signal to reach the burial site. Moreover,
Waranowitz also testified that the Erickson and Nokia brand phones performed almost exactly the same. With
respect to Exhibit 3 1, trial counsel cross-exam'med Waranowitz about the call times and durations, but she failed to
explore the disclaimer in any way.
43
reasonable professional judgment if counsel failed to present available evidence that would have
questioned the defendant’s involvement in the crime). As in Driscoll, Petitioner’s trial counsel
committed a similar error by failing t0 use readily accessible information t0 expose the weakness
of the State‘s theory through adequate cross-examination 0fth€ State’s expert witness.
The State argues, however, that requiring trial counsel t0 cross—examine Waranowitz
regarding “a fax cover sheet” would be at odds with the highly deferential standard 0f Strickland,
which the Supreme Court recently reaffirmed in Maryland v, Kulbicki,1 36 S.Ct. 2 (2015) (per
curiam). As a preliminary matter» the issue before the Court is whether trial counsel failed to
cross-examine the State’s cell tower expert about the contenrs 0f the fax cover sheet, namely the
set 0f instructions and disclaimer that provided guidance 0n how to properly interpret Exhibit 3 l.
With respect to the State’s reliance 0n Kulbz'cki, the Court finds that the facts of the present case
are significantly different from those found in Kulbicki.
In Kulbicki, the defendant alleged that trial counsel rendered ineffective assistance when
he failed to cross-examine the State‘s ballistic expert about a report, which failed to explain the
causes of the overlapping chemical compositions of bullets produced from different sources‘ 136
S.Ct. at 3. The Maryland Court 0f Appeals held that trial counsel rendered deficient performance
when he failed to discover this methodological flaw that would eventually lead t0 the demise of
Comparative Ballistic Lead Analysis evidence and cross—examine the State's expem about the
report that was authored by the expert a few years prior t0 trial‘ Id. at 3—4. The Supreme Court of
the United States reversed the decision of the Maryland Coult of Appeals and held that trial
counsel did not perform deficiently by failing t0 “pok[e] methodological holes in a then-
uncontroversia] mode 0f ballistic analysis." Id. at 4‘ In so holding, the Supreme Cour: 0f the
44
United State doubted whether a diligent search would have uncovered the report at issue given
that “in an era ofcard catalogues, not a worldwide web, what efforts would counsel have had t0
expend t0 find the compilation [that included the report]?” Id. As the Supreme Court of the
United States explained, the highly deferential standard 0f Strickland does not require attorneys
to g0 “looking for a needle in a haystack.” Id. at 4—5 (citing Rompilla v. Beard, 545 U.S. 374, 389
(2005)).
The Court’s decision in this case does not requirc trial counsel to provide representation
that is “close to perfect advocacy”; the Court is simply adhering to the standard of “reasonable
competence" that is guaranteed by the Sixth Amendment right to effective assistance of counsel.
Id. at 5 (citing Yarboroug/q v. Gentry, 540 US. l, 8 (2003) (per curiam) (internal quotations
omitted». In the case subjudice, the Court is not concluding that trial counsel should have
predicted the eventual downfall of a non-controvcrsial mode ofscientific evidence? The Court
is simply stating that reasonable competence required Petitioner’s trial counsel t0 pay close
attention t0 detail while conducting document review.” Moreover, trial counsel did not have to
expend an unreasonable amount 0f resources 0r g0 100k for a “needle in a haystack.” 1d. at 4-5.
The metaphorical needle at issue - the disclaimer about the unreliability of incoming calls i was
disclosed to trial counsel as part 0f pre-trial discovery. As such, tha concerns that the Supreme
Court 0f the United States expressed in Kulbicki am not present in the instant case.
2' Trial counsel did not have lo be clairvoyant to predict that the State would rely upon Petitioner‘s cell phone
records; the State disclosed its intention to introduce Petitioner’s cell phone records prior to trial. State’s Exhibit 1A—
0023. The record also reflects that trial counsel had some notice ofthe State’s intention to introduce Petitioner’s cell
phone records into evidence because she had stipulated lo its introduction prior lo trial.
22 A reasonable attorney would have noticed that Exhibit 31 is an excerpt of a larger set of phone records, because
the top orthc very first page 0f these phone records clearly specified “SUBSC RIBER ACTIVITY.” Petitioner's
Exhibit PC2-l 5. The title ofthe phone records ought to have alerted trial counsel to the set ofinstructions and the
disclaimer about "How t0 read ‘Subscriber Activity’ Report," which she had obtained as part ofpre—trial discovery.
Petitioner‘s Exhibit PC2-l6, Trial counsel simply had t0 use two fundamental skill-scts that are essential t0
reasonably competent lawyers: reading comprehension and attention to detail.
45
As the Court has explained, supra, a reasonable attorney under these circumstances
would have carefully reviewed the documents disclosed through pre-trial discovery, and have
been prepared t0 “subject the State’s theories t0 the rigors 0f adversarial testing.” Driscoll, 71
F.3d at 709. Instead, trial counsel failed 10 confront the State’s cell tower expert with the
disclaimer, and thereby allowed the jury to deliberate with the misleading impression that the
State used reliable information to approximate the general location of‘Petitioner’s cell phone
during the time 0f the burial. Reasonable professional judgment requires attorneys to review
discovery materials and challenge an attempt. by the State to present a misleading theory t0 the
jury. In light 0f these circumstances, the Court finds that trial counsel’s performance fell below
the Standard of reasonable professional judgment when she failed t0 pay close attention t0 detail
while reviewing the documents obtained through pre-trial discovery and when she failed to
cross-examine the State’s cell tower expert regarding the disclaimer about the unreliability 0f
using incoming calls t0 determine location.
In addition to establishing deficient performance, Petitioner must also demonstrate that
trial counsel’s unprofessional errors prejudiced his defense. Strickland, 466 U.S. at 69'1.
Prejudice exists if there is a “reasonable probability” that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. at 694. “A reasonable
probability is a probability sufficient t0 undermine confidence in the outcome.” Id. As the
Maryland Court 0f Appeals explained in Oken, a petitioner must show a “substantial possibility”
that the result of the proceeding would have been different, but for counsel’s unprofessional
errors, 343 Md. at 284. Citing Strickland, the Maryland Coun 0f Appeals noted that when
46
analyzing prejudice, the focus should be 011 “whether the result ol‘the proceeding was
fundamentally unfair 0r unreliable.” Id.
Petitioner argues that trial counsel’s failure t0 cross—examinc Waranowitz regarding the
disclaimer prej udiced his defense. Petitioner claims that had trial counsel confronted Waranowitz
about the unreliability of using incoming calls t0 determine location, there is a substantial
possibility that the results 0f the trial would have been different.
At trial, the State advanced the theory that Petitioner strangled the Victim in the Best Buy
parking lot sometime between 2:1 S p.111. and 2:45 p.m. and then disposed 0fthe Victimis body in
Leakin Park later that night at approximately 7:00 p.m. As the Court has noted supra, the
evidence presented by the State to establish the general location of Petitioner’s cell phone during
the time Ofthe burial was the crux of the State’s case. The record reflects that the State relied
upon the evidence related t0 the burial event throughout the trial. 1n the State’s opening
statement, for instance, the prosecution presented the connection between the burial site and
Petitioner’s cell phone as the jury’s first impression 0f the case:
[STATE]: At this time I get to let you know in advance what the evidence you’re going
to hear is. Well, you’re going t0 find out that 0n January 13th, 1999, somewhere
about 7:09, 7:16, one [Pusateri] was calling a friend ofhers by the name of [Wilds].
The number that she dialed was 443-253-9023. That’s the defendant’s cell phone
number. She was dialing that number because she got a voicemail v a message left 0n
her phone from [Wilds] that was somewhat garbled. It was somewhere around in here.
She got this call. She —
(Pause)
[STATE]: Actually the seven 0" clock call, a message left for her. It was garbled. She
didn’t understand it. She called back to find out what’s going on. Well the phone was
answered. One of these calls, 7:09, 7:16, was her calling this number. The phone was
answered. The defendant in this case answered the phone. She said, ‘This is
[Pusateri] I am calling for [Wilds].‘ The defendant said, ‘|Wilds] can’t come t0 the
phone right now, we’re busy,’ and hung up. At that moment, the defendant, along
47
with [Wilds], was in Leakin Park. The defendant was burying the body 0f one Hae
Min Lee.
Trial Tr., at 96, Jan. 27, 2000 (emphasis added). A jury’s first impression 0f a case plays a
significant role in the jury’s ultimate verdict. As the Maryland Coum oprpeals explained in
Arringmn v, Stale, 411 Md. 524, 555 (2009), since “opening statements are the first
characterization of the case heard by the jury and often presented in artful form, [the courts] do
not underestimate the ultimate impact 0f these statements 0n the jury’s verdict."
The State also emphasized the connection between the burial and Petitioner’s cell phone
records during closing arguments:
[STATE]: At this point in time [Wilds] knows he’s not going t0 meet [Pusateri] as they
had previously arranged. So at 7:00 he pages [Pusateri]. Ho leaves that confusing
message that she tells you about. [Wilds] and the Defendant go t0 Leakin Park — time.
And the next phone call, calls 10 and 1'1, are crucial. [Wilds] tells you that as they’re
entering the park, preparing to bury the body 0f [the victim], [Pusateri] returns that
call . . . that call ladies and gentlemen, at 7:09 or 7:16 p.m., occurred in the cell
phone area covered by Leakin Park. That call is consistent with everything the
witnesses told you.
Trial TL, at 70, Feb. 25, 2000 (emphasis added). During the State’s rebuttal, the prosecution once
again urged the jury t0 consider the 7:09 p.m. and 7:16 pm. incoming calls and t0 draw
inferences as to the possible location 0f Petitioner’s cell phone dm'ing the time of the burial:
[STATE]: The Defense tells you well, they can’t place you specifically within any place
by this. Absolutely true, but look at 7:09 and 7:16, 689B, which is the Leakin Park
coverage area. There’s a witness Who says they were in Leakin Park. If the cell
coverage area comes back as that that includes Leakin Park, that is reasonable
circumstantial evidence that you can use t0 say they were in Leakin Park.
Id. at 125 (emphasis added). The record shows that the cell tower evidence reflected in
Petitioner’s ccl] phone records during the time 0f the burial served a central role in the State’s
theory 0f the case.
48
Scientific evidence, such as the cell tower evidence contained in Petitioner’s cell phone
records, plays a significant role in a jury’s decisiomnaking process. In Reed v. Slate, 283 Md.
374, 375 (1978). the Maryland Court of Appeais addressed the issue 0f whether testimony based
0n spectrograms, commonly described as “voiceprints,” was admissible as evidence ot‘voice
identification. The Maryland Court 0f Appeals recognized the potential dangers Ofscientific
evidence in the trth-determining process:
Frye was deliberately intended to imerpose a substantial obstacle to the unrestrained
admission of evidence based upon new scienti fic principles. . . . Several reasons foundsd
in logic and common sense support a posture ofjudicial caution in this area. Lay jurors
tend t0 give considerable weight t0 ‘scientific’ evidence when presented by ‘experts’
with impressive credentials. We have acknowledged the existence ofa. . . misleading
aura of certainty which ofien envelops a new scientific process, obscuring its currently
experimental nature. As stated in Addison, supra, in the course 0f rejecting the
admissibility ofvoiceprint testimOny, scientific proof may in some instances assume a
posture of mystic infallibility in the eyes 0f a jury[.]
Id. at 386 (citing People v. Kelly, 17 Cal. 3d 24, 32 (1976) (internal quotations omitted; emphasis
added». More recently, the Maryland Court 0f Appeals continued to express similar concerns
when reviewing the validity and reliability of Comparative Ballistic Lead Analysis evidence. See
Clemons v. State, 392 Md. 339, 347 n.6 (2006); see also Kulbicki v. State~ 440 Md. 33, 55 (2014)
(noting the “significancejurors afford to forensic evidence in assessing a defendant’s guilt or